Split Decision May Send Marijuana Case to the Supreme Court

In a split decision, Kadonsky v. Lee, ___ N.J. Super. ___ (App. Div 2017), the New Jersey Appellate Division tackled the issue of whether the Director of the New Jersey Division of Consumer Affairs may reschedule marijuana from a schedule I controlled substance to a schedule IV or V controlled substance under the Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 to -56.

The plaintiff, who is serving a life sentence as a result of pleading guilty under the “drug kingpin” statute, N.J.S.A. 2C:35-3, petitioned the Director to reschedule marijuana, arguing that it should not be a Schedule I drug because “marijuana no longer satisfied one of the requirements for inclusion in Schedule I, that the substance ‘has no accepted medical use in treatment.’ N.J.S.A. 24:21-5(a).” The plaintiff pointed to the Legislature’s passage of the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”), N.J.S.A. 24:6I-1 to -16, to support his argument that medical marijuana indeed has “a beneficial use . . . in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions.”

The Director denied the petition for several reasons. The Director found “no indication that, in passing CUMMA, the Legislature intended ‘to treat marijuana similar or consistent with substances listed in Schedules II-V,” and he noted that state Department of Health and the Board of Medical Examiners have not interpreted CUMMA as rescheduling or permitting the rescheduling of marijuana. The Director also concluded that federal law barred the rescheduling and that New Jersey was required to follow federal schedules.

The Plaintiff appealed the Director’s determination, and the Appellate Division granted leave to appear as amicus curiae on behalf of a minor child who takes medical marijuana as part of a regimen to treat seizures.

Writing for the majority, Judge Guadagno (joined by Judge Messano) determined that the Director erred in denying the petition. Of interest to the Supreme Court (should this case reach it) may be the majority’s implication of State v. Tate, 102 N.J. 64 (1986). In Tate, the Court rejected a defendant’s argument that his use of medical marijuana was a “medical necessity.” Justice Clifford, writing for a divided Court, noted that the Legislature had classified marijuana as a Schedule I drug, which signaled that it has “no accepted medical use in treatment.”

The majority in Kadonsky, however, noted that the Court left wiggle room: “Justice Clifford also observed that the Legislature ‘demonstrated foresight by leaving room for the possibility that scientific developments and advances in knowledge could ultimately render marijuana’s Schedule I classification inappropriate.'” The majority further noted that Justice Clifford suggested marijuana could be rescheduled in the future “giving consideration to . . . current scientific knowledge.”

From the majority’s vantage point, that future may be now: “[A]ny argument suggesting [marijuana has no medical use in treatment] in the post-CUMMA era strains credulity beyond acceptable boundaries.” The majority did not go so far as to mandate reclassification but rather remanded for further proceedings.

In dissent, Judge Espinosa concluded the Director acted appropriately. Of particular importance to Judge Espinosa was the “unambiguous language of N.J.S.A. 24:21-3(c) that the Director adhere to federal schedules.” Judge Espinosa therefore concluded the Director’s decision “must be sustained because there is no ‘clear showing that it is arbitrary, capricious, or unreasonable or that it lacks fair support in the record.'”

The Supreme Court of New Jersey may now have the final say. As a result of the split decision, this case likely is headed to the Court on an appeal as of right.

On the other hand, if, as some assume, marijuana becomes legal in New Jersey in the not too distant future, this issue may be moot before the Court can take it up.